Lines v. Brandon

• Decision Date: 30 April 1917
• Docket Number: 352
• Citation: 194 S.W. 867,129 Ark. 27
• Parties: LINES v. BRANDON
• Court: Arkansas Supreme Court

194 S.W. 867

129 Ark. 27

LINES v. BRANDON

No. 352

Supreme Court of Arkansas

April 30, 1917

Appeal from St. Francis Chancery Court; Edward D. Robertson Chancellor; modified and affirmed.

Judgment affirmed.

Killough Lines & Killough, for appellants.

1.Appellants had the right to redeem within one year and the suit was filed within the time.65 Ark. 392;64 Id 576.

2.No tender was necessary, the amount necessary being unknown.A tender would have been a mere form.12 Enc. of Ev. 499-501; 2 Greenl. on Ev. 562;21 Ark. 560;27 Id. 29;39 So. 1020;17 A. 356;134 U.S. 68.As the right to redeem is conceded, other authorities cited are omitted.The face of the transaction is not the amount required to redeem where there are credits as here.27 Cyc. 1824;65 Ark. 392.

3.The credits claimed should have been allowed.The $ 93.71 purchased after the death of Harvey Hudgins should not have been charged to his account.The open account was not a proper charge.

4.A chancery court can set aside the allowance of a claim by the probate court for good cause, and allow all proper credits.11 R. C. L. 66;90 Ark. 263;68 Id. 492: 68 Id. 495;19 U.S. Law Ed. 260;33 Ark. 729.Fraud will be inferred, if necessary, for purposes of justice.33 Ark. 732-3.

5.Partnerships are entities and accounts can not be offset promiscuously.Mechem on Partnership, p. 446.See, also, 1 Loveland on Bankruptcy, 547-8;14 Am. St. 712;51 L. R. A. 465;L. R. A., 1916A-1211.The mercantile account due Brandon, Baugh & Co. could not be charged to the mortgage due Brandon & Baugh.The only amount due Brandon & Baugh was the two $ 900 notes and interest of which $ 180 was paid.

6.If the account should be held to come within the debt secured by the mortgage, it should be purged of all improper charges.A credit should be allowed for all rents, leaving only $ 1,060.98 necessary to redeem.

Mann & Mann, for appellees.

1.The probate court judgment is conclusive except for fraud.64 Ark. 1;70 Id. 88;73 Id. 612.The judgment of a court having jurisdiction is not open to collateral attack by allegation of fraud in the transaction between the parties which formed the basis of the judgment.68 Ark. 492;73 Id. 440;75 Id. 415;83 Id. 508;90 Id. 261.But there is no allegation nor proof of fraud.

2.Even if we go behind the judgment of the probate court and state the account, the findings of the chancellor must be sustained.All proper credits have been given.

3.The parties were not sincere in their effort to redeem.In redeeming one must pay the purchase price, interest, repairs and costs and be credited with rents.65 Ark. 392; 45 Id. 275.The chancellor's findings are correct.

OPINION

HUMPHREYS, J.

This suit was originally instituted by appellants against W. P. Brandon and J. D. Baugh in the St. Francis Chancery Court to redeem the following described real estate in St. Francis County, Arkansas, towit: "The west half of the northeast quarter of section twenty-five, and the east half of the northwest quarter of section twenty-five, in township five north, range five east, containing 160 acres; also northwest quarter of section twenty-two, containing 160 acres, and the north half of the northeast quarter of section twenty-one, containing 80 acres, all in township six north, range two east," which had been sold under the power of sale contained in a mortgage executed on the 20th day of February, 1909, by Harvey and Martha Hudgins to S. H. Mann, trustee, for W. P. Brandon and J. D. Baugh.

W. P. Brandon and J. D. Baugh answered that they had stood ready at all times to accept as redemption of said lands the bid, interest, taxes and necessary repairs, less rents, but that appellants had refused to tender said amount, and still refused to pay the amount to which they were entitled.They pleaded that on the date of sale under the power in the mortgage, the estate of Harvey Hudgins, deceased, was indebted to them in the sum of $ 3,390; that said indebtedness was covered by the terms of the mortgage, and that they bid that amount at the sale.They further pleaded that the amount due by the estate to them had been probated, and that the judgment rendered thereon, not having been appealed from, was final and binding on appellants.

On December 8, 1914, appellants filed an amended bill, alleging that the claim presented by Brandon & Baugh against the estate of Harvey Hudgins, deceased, contained items properly chargeable against Martha Hudgins individually, and not against the estate of Harvey Hudgins, deceased; and was, therefore, fraudulent and void.They alleged that Brandon, Baugh & Company had furnished the supplies to Harvey Hudgins in his lifetime, for which Brandon & Baugh presented a claim against the estate, and that such items were not proper charges.They made Dan Wylds, the third member constituting the firm of Brandon, Baugh & Co., a partydefendant.

On the same date, Dan Wylds joined W. P. Brandon and J. D. Baugh in an answer to the amended complaint, in which the answer to the original bill was adopted, and in which it was denied that the claim presented to the estate contained improper or false items.

The pleadings presented other issues unnecessary now to mention as they have been excluded by the following agreement of counsel: "It is agreed in this cause that the land described in the complaint herein was the property of Harvey A. Hudgins at the time of his death, said title being subject to the deed of trust in favor of Brandon & Baugh, from which it is sought to be redeemed, and that the said H. A. Hudgins died intestate and without issue, and that Martha E. Hudgins, now Ricks, was his widow, and the co-defendants with T. E. Lines are his only heirs at law."

The chancellor heard the cause upon the pleadings, depositions and exhibits thereto, from which he found and decreed that appellants might redeem said lands by paying the bid of $ 3,391 with 10 per cent. per annum from the 28th day of September, 1912; $ 307.88 taxes, with $ 68 interest to June 26, 1916; $ 31.32 for improvements and repairs, with $ 9.60 interest thereon to June 26, 1916, or a total amount of $ 5,081.12, less $ 200 per year for rent for the years 1913, 1914, 1915 and 1916.

From the finding and decree of the chancellor, an appeal has been prosecuted and the cause is here for trial de novo.

In short, the facts are that Harvey A. Hudgins, a negro man owned a part of the lands described above and bought the other lands from Brandon & Baugh, his landlords, for $ 2,700, and to secure the payment thereof executed three promissory notes for $ 900 each, bearing interest at the rate of 10 per cent. per annum, and gave a mortgage on all of the lands to secure the payment of the notes, together with all other indebtedness that might accrue on account of advances of provisions, goods, moneys, etc.At the time the mortgage was executed, W. P. Brandon and J. D. Baugh were engaged in a general mercantile or furnishing business with Dan Wylds under the firm name of Brandon, Baugh & Co., and arranged for Hudgins to get his supplies for the purpose of cropping a large body of bottom land owned by Brandon & Baugh through that firm.In addition to the real estate mortgage aforesaid, Harvey Hudgins executed a chattel mortgage to Brandon, Baugh & Co., on the 1st day of March, 1909, to secure advances.Brandon & Baugh stood for Harvey Hudgins, and an account was opened with Brandon, Baugh & Co.On November 16, Harvey Hudgins paid the account to that date, including the first $ 900 purchase money note.The account was continued from that date, and on December 17, 1909, Harvey Hudgins bought a span of mules for $ 400, which was charged against him on the account.Hudgins died on January 30, 1910, at which time he owed the two $ 900 purchase money notes. with interest, and $ 1,156.65 on open account.After his death, the widow, Martha Hudgins continued to gather the crop and purchase goods until March 5, 1910, at which time she concluded to rent the same lands for the year 1910, which her husband had cultivated in 1909.On that day, she purchased on the account two mules for $ 450, took credit for all the cotton she had gathered, the labor performed by her husband, amounting to $ 129.70, corn to the value of $ 27.50 delivered to J. J. Jackson, and hay to the amount of $ 7.50 delivered to the same party, and executed her note for $ 1,375.30, which left her owing a balance of $ 210.She executed a chattel mortgage on the property left by her husband and purchased by her to secure these amounts and any advances that might be made to her during the year 1910 or thereafter.She continued the business of farming for a period of three years, and during that time, used and appropriated all the personal property left by her husband to the payment of her individual accounts.Incident to gathering the crop of 1909, the account was increased...